COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 70607 and 70689 ALFONSO A. GRECO (NO. 70607) : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION OHIO BUREAU OF MOTOR VEHICLES : : Defendant-Appellee : : : : CITY OF ROCKY RIVER (NO. 70689): : Plaintiff-Appellee : vs. : : ALFONSO A. GRECO : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 5, 1996 CHARACTER OF PROCEEDING: Appeals from Rocky River Municipal Court Case No. 96-CVH-0147 and Case No. 96-TRC-609 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Appellant: BRIAN F. HAGAN Rego, Cullen & Hagan Co. P.O. Box 26259 21270 Lorain Road Fairview Park, Ohio 44126 For Appellee: GARY A. HOTZ 24650 Center Ridge Road Suite 210 Westlake, Ohio 44145 - 2 - O'DONNELL, J.: Two matters have been consolidated for our review which arise out of a traffic stop effected by Patrolman Kelly Stillman of the Rocky River Police Department on June 21, 1996 at 1:45 in the morning. At that time, after assisting another officer in connection with an unrelated traffic stop in the eastbound lane of Interstate 90, Stillman reentered the highway and observed a vehicle rapidly approaching from the rear with its headlights on the high beam. Stillman moved his vehicle back to the bern permitting the approaching vehicle to pass, and then followed the vehicle and saw it veer two to three feet onto the berm of the road, travel a distance of fifty to seventy-five feet and then veer back into the marked lane of travel. As a result of these circumstances, Stillman stopped the vehicle at the McKinley Avenue off ramp of Interstate 90. After approaching the vehicle, Officer Stillman had a conversation with the driver, Alfonso Greco, and noticed a moderate odor of alcohol on his breath, glassy eyes, and thick speech. After administering field sobriety tests, Officer Stillman arrested Greco for failing to maintain a continuous lane of travel and requested Greco submit to a chemical test administered at the police station which resulted in a breath alcohol content of .12 grams of alcohol per 210 liters of breath. Subsequently, Officer Stillman issued additional citations for driving under the influence of alcohol - 3 - and operating a vehicle with a prohibited breath alcohol level and he also administratively suspended Greco's driver's license in accordance with provisions of R.C. 4511.191. Greco then moved to suppress evidence in connection with the criminal traffic stop including results of the chemical test and also appealed the administrative license suspension to the Rocky River Municipal Court. The court conducted a single hearing on the motion to suppress and on the administrative license suspension because these matters had been consolidated by agreement of counsel and restricted to the questions of whether the arresting officer had reasonable suspicion to conduct a traffic stop of Alfonso Greco. Following the hearing, the court issued two separate journal entries, one in case No. 96-CVH-0147 finding the officer had reasonable grounds to stop the appellant and affirming the ALS and in the other, case No. 96-TRC-609 A/B/C denying the motion to suppress. As a result of the court's rulings, appellant moved to have the court reconsider its ruling on the motion to suppress; the court denied the motion whereupon appellant entered pleas of no contest to all three traffic citations. The court made findings of guilt to each charge, and appellant now appeals from the separate determinations of the trial court affirming the administrative license suspension and from the denial of request to reconsider the ruling on the motion to suppress. Appellant assigns three errors for our review. Because the first two - 4 - assignments of error share a common legal basis, we shall consider them together. They state: I. THE TRIAL COURT ERRED IN DENYING PLAINTIFF- APPELLANT'S APPEAL OF THE ADMINISTRATIVE LICENSE SUSPENSION IN THAT THE OFFICER FAILED TO POSSESS THE REQUISITE REASONABLE GROUNDS TO STOP, DETAIN AND ARREST THE PLAINTIFF- APPELLANT. II. THE TRIAL COURT ERRED IN DENYING DEFENDANT- APPELLANT'S MOTION TO SUPPRESS IN THAT THE OFFICER FAILED TO POSSESS THE REQUISITE REASONABLE SUSPICION, BASED UPON SPECIFIC AND ARTICULABLE FACTS, THAT CRIMINAL BEHAVIOR HAD OCCURRED OR WAS IMMINENT TO JUSTIFY THE STOPPING OF DEFENDANT-APPELLANT'S VEHICLE. Greco argues the trial court erred in denying the motion to suppress evidence because Officer Stillman did not have justification to stop his vehicle for a minuscule deviation from his lane of travel which lasted for less than one second. The city argues, however, that based on the totality of the circumstances, the officer had reasonable suspicion supported by articulable facts sufficient to justify the investigatory stop of Greco's vehicle. The issue then for resolution is whether the trial court correctly denied the motion to suppress evidence thereby finding that when Greco veered onto the berm of the roadway at 1:45 in the morning while driving with his headlights on the high beam Officer Stillman had a reasonable suspicion that appellant had violated the law which justified stopping that vehicle. We begin our analysis by reviewing Terry v. Ohio (1968), 392 U.S. 1, where the court held a police officer may make an - 5 - investigatory stop when that officer has a reasonable suspicion based on specific and articulable facts that the individual involved is engaged in criminal activity. In State v. Bobo (1988), 37 Ohio St.3d 177, the court stated in its syllabus: 1. The propriety of an investigative stop by a police officer must be viewed in light of the totality of the surrounding circumstances. (State v. Freeman [1980], 64 Ohio St. 2d 291, 18 O.O. 3d 466, 414 N.E. 2d 1044, paragraph one of the syllabus, approved and followed.) The facts in this case reveal that appellant, while operating his vehicle at 1:45 a.m. with headlights on high beam, did veer off onto the berm of the roadway and because of that Officer Stillman stopped the vehicle at the McKinley Avenue off ramp. The action of the driver in veering off the marked lane of travel onto the roadway at that hour of the morning together with the vehicle's headlights on high beam warranted the conduct of an investigatory stop by the officer. The totality of the circumstances must be viewed through the eyes of a reasonable and prudent police officer on the scene who must react to events as they unfold. See State v. Andrews (1991), 57 Ohio St.3d 86 at 87. Our decision today is in accord with Mentor v. Kendall (1992), 83 Ohio App.3d 637, where the court determined that driving on the berm of the roadway provided the specific articuable facts to warrant the investigative stop. - 6 - We conclude that the trial court correctly denied appellant's motion to suppress and correctly affirmed the administrative license suspension because the totality of the circumstances in this case, when viewed through the eyes of a reasonable and prudent police officer, justified the investigatory stop of the appellant. Accordingly, these assignments of error are overruled. Appellant's remaining assignment of error states: III. THE TRIAL COURT ERRED IN DENYING DEFENDANT- APPELLANT'S MOTION TO SUPPRESS IN THAT THE OFFICER FAILED TO POSSESS THE REQUISITE PROBABLE CAUSE TO ARREST THE DEFENDANT- APPELLANT FOR OPERATING A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL. Here, appellant challenges the trial court's finding that Officer Stillman possessed probable cause to arrest based upon "six of possible six cues for intoxication during administration of the H.G.N. test." Appellant maintains no evidence supports this finding. The city argues that since the parties had argued to restrict the scope of the hearing on the motion to suppress to the issue of reasonable suspicion for the stop, appellant is estopped to assert this assignment of error. The issue here is whether the officer had probable cause to arrest the appellant for operating a motor vehicle while under the influence of alcohol in this case. The transcript of the limited hearing on the motion to suppress reveals that upon making the investigatory stop, Officer - 7 - Stillman immediately noticed a moderate odor of alcohol on appellant's breath, and also noticed that his eyes were glassy and his speech was thick. He testified he got "all six indicators." "Once reasonable suspicion is found for an investigatory stop, an officer must then have probable cause to arrest a detainee." State v. Wireman (1993), 86 Ohio App.3d 451, at 454. "Probable cause exists when the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a prudent man in believing that an offense has been committed. Beck v. Ohio (1964), 379 U.S. 89, 91." State v. Pavao (1987), 38 Ohio App.3d 178. Whether probable cause exists for an arrest is a factual question particular to each case. Id. In this case, odor of alcohol emanating from Greco's breath, his glassy eyes, and thick speech and Officer Stillman's testimony regarding his performance on the field sobriety tests, provided probable cause for the arrest. Accordingly, the trial court correctly denied appellant's motion to suppress and this assignment of error is overruled. The judgment of the trial court in both cases is affirmed. - 8 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Rocky River Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. MATIA, P.J., and DYKE, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .